Jacobs v. Cauthorn

• Decision Date: 18 February 1922
• Docket Number: No. 22420.,22420.
• Citation: 238 S.W. 443,293 Mo. 154
• Parties: JACOBS et al. v. CAUTHORN at al.
• Court: Missouri Supreme Court

238 S.W. 443

293 Mo. 154

JACOBS et al. v. CAUTHORN at al.

No. 22420.

Supreme Court of Missouri, Division No. 2.

February 18, 1922.

Motion for Rehearing Overruled March 18, 1922.

Appeal from Circuit Court, Audrain County; Ernest S. Gantt, Judge.

Action for injunction by F. P. Jacobs and others against Ross B. Cauthorn and others. From a judgment dismissing the plaintiffs' bill, plaintiffs appeal. Reversed and remanded.

Injunction to restrain the levying and ex" tending of a tax for the building and repair fund of consolidated school district No. 1 of Audrain county, Mo., upon the ground that said tax, as voted by the legal voters of the district, is illegal.

The petitioners are qualified voters of the district, and the defendants were the county clerk of Audrain county and the directors of said district, six in number. Said district was a consolidation of parts of four other districts and is known to the law as a "town district" (State ex rel. v. R. R., 263 Mo. 389, 174 S. W. 64), as it Included the town of Farber, together with other appropriate contiguous territory.

Plaintiffs were cast below and have duly prosecuted their appeal to this court complaining that the court erred in refusing to grant the relief prayed for and for dismissing their bill. Other complaints will be noted in the course of the opinion. The petition, after alleging that plaintiffs were resident taxpaying citizens and legal voters of said district, averred that on the 13th day of March, 1920, notices were given of the annual meeting of the qualified voters of said district to be held on the 6th day of April, 1920, and that said notices specified the following, among other things, to he considered:

1. To vote a nine months' school.

2. To vote 60 cents in excess of 40 cents tax on $100 valuation as prescribed by law.

3. To vote 25 cents building and repair fund.

4. To elect two directors for a term of three years.

That at said meeting a printed ballot was delivered to said voters for their use, which read with respect to the "building and repair fund" as follows, "To vote twenty-five cents building and repair fund,"? and, "Against twenty-five cents building and repair fund"; that upon a vote on said proposition 99 votes were cast for it and 84 votes against it; that said proposition was not carried by two-thirds of the votes cast by the maned voters voting at said election; that the clerk of the said school board did not certify, as required by law, the result of such vote and the rate of taxation so voted, but only addressed a letter to the county clerk reciting as follows:

"Below is result of Farber Consolidated Dist. No. 1 election held April 6th, 1820. Levy voted and carried $1.25 for school purposes on $100 " valuation (which consisted of $1.03 teacher fund and 25 cents building and repair fund)."

That the board of directors of said district had no legal right or authority to make an estimate for such an assessment, and that said board had not forwarded to the said county clerk legal estimates, and that without such action said county clerk had no legal right to make such assessment and levy and extend such tax on the property of the district including the property of the plaintiffs; that there was no legal authority to vote an increase on said school district for a "building and repair fund"; that said 25 cents tax was not legal because not founded upon a petition by at least ten taxpaying citizens of said district; that it was illegal because of insufficiency of the notice; that the ballots employed were illegal; that it did not carry by a two-thirds vote of the voters; that the board of directors did not make an estimate as required by law and that said tax "has not been legally established."

It was then averred that the county clerk was about to levy and extend said tax of 25 cents, and that same being illegal would cast clouds and place liens on the property of plaintiffs, and that the defendants generally were threatening to levy such illegal tax, all to becloud the title "of the plaintiffs and other property owners in said district and cause a multiplicity of law suits." There was an appropriate prayer for a restraining order upon the defendants, which prayer concluded as follows: "And for such other and further relief as to the court shall seem meet and just." The answer was a general denial.

The testimony supported the allegations of the petition, except that it appeared that a proper estimate as required by section 11142, R. S. 1919, had been submitted to the county clerk by the board of directors before May 15th. At the conclusion of the evidence the court dismissed the plaintiffs' bill.

Fry & Fry, of Mexico, Mo., for appellants. R. D. Rodgers and J. W. Buffington, both of Mexico, Mo.; for respondents.

REEVES, C. (after stating the facts as above).

As will appear from the foregoing statement, tie chief complaint of appellants in their bill was directed against the "25 cents building and repair fund" and mainly on account of the manner of authorization. Their complaint that the proposition should have been supported by a petition of ten taxpayers of the district is not tenable, as section 11152, R. S. 1919, specifically grants to the board of directors the right, when such board deems it necessary, to submit the question of increase of the annual rate of taxation for repairing and furnishing school buildings, and the same section permits said increase for those purposes upon a vote of a majority of those qualified voters casting their votes on the proposition. The notice of mill election and the ballots used sufficiently comply with the law, as it does not appeal that any one participating in said meeting was deceived by said notice or confused in the matter of casting an intelligent ballot. This contention must be ruled adversely to appellants, and we also hold that the board of directors seasonably submitted its estimate to the county clerk.

2. It was alleged in the bill that said tax had not been legally established and there was a prayer for general relief. Section 11, art. 10, of the Constitution, fixes the maximum rate for school purposes. The district in question, as stated, is a "town district"—that is to say, composed of a town and contiguous territory—and therefore it falls within the provisions of said section limiting the maximum rate for all purposes to $1 on the $100 valuation, so that it was not within the power of the district to vote an annual rate for school purposes beyond that limit, and the act of the voters in doing so was illegal. Harrington v. Hopkins et al. (Mo. Sup.) 231 S. W. 263.

The purpose for which said increase was voted was, not to erect a school building, but such increase, as stated in the notice and on the ballots, was for "building and repair fund." If the voters of the district had intended to erect a school building, then it would have been legitimate to vote an increase beyond the maximum fixed by the Constitution; but in such case, both under the Constitution and by statute, it would have been necessary for a submission of that question to the voters, and an authorization by two-thirds of the qualified voters present and voting on said proposition. From the bill and the proof in this case we must hold that the increase was only for repairing and furnishing the school building. Therefore the facts here are controlled by the decision of Harrington v. Hopkins et al., supra.

3. It is pointed out by respondents that the above is a constitutional question and that it was not raised seasonably by the appellants. Undeniably it is the general rule that constitutional questions must be raised at the first opportunity. Milling Co. v. Blake, 242 Mo. 23, loc. cit. 32, 145 S. W. 438; State ex rel. Franklin County v. Tibbe Electric Co., 250 Mo. 522, loc. cit. 527, 157 S. W. 635; Lavelle v. Metropolitan Life Ins. Co. (Mo. Sup.) 231 S. W. 616. However, in this case the petition challenges the legality of the tax and prays the court for general relief therefrom. In support of their contention that said tax was illegal, they point to the...